Judges in danger for their talents

By Dumisani Muleya

Current problems and mounting political pressure on Zimbabwean High Court judge Justice Charles Hungwe over somewhat vague charges, although evidently triggered by his role in the recent controversy over the Anti-Corruption Commission’s threat to raid three cabinet ministers on graft allegations and the granting of bail to human rights lawyer Beatrice Mtetwa, are not surprising at all.

Following the anti-graft body’s botched search warrant bid and Mtetwa’s bail uproar in which Hungwe was involved, there has been systematic pressure on him via a hostile state media negative publicity campaign.

Inevitably, the judge has now been thrown into the eye of a storm over two matters he allegedly mishandled involving a house sale wrangle and murder case ruling.

While the state media has been roped in to tarnish Hungwe’s reputation, probably in the process cause an official investigation and dismissal, it is clear the forces of darkness are at work.

Whatever the facts about these issues and Hungwe’s role in them, the campaign against him is all too familiar. It falls within an established clumsy but systematic pattern of harassment and purges of judges considered officially undesirable.

This has been happening since 2000 when the country descended into political and economic turmoil amid President Robert Mugabe and Zanu PF’s disastrous policy and leadership failures, which spawned the emergence of the MDC and a stalemate after a series of disputed election results.

The judiciary in general and judges in particular have provided an interesting, albeit frequently controversial, subject matter for debate and study by lawyers and other professionals.

Over the years, Zimbabwe’s judges have been “in danger for their talents” as CF Forsyth once wrote in reference to the South African situation during apartheid.

Forsyth’s book In Danger for Their Talents examines the attitude of the apartheid regime towards the judiciary and how some judges collaborated with the system, while others resisted its dictates, as well as the rewards and punishment thereof respectively.

Like during apartheid, in Zimbabwe, judges, among other sections of society, have been under fire since 2000. More than 10 top judges, including former chief justice Anthony Gubbay and others viewed in official circles as disobliging and obstinate, were forced to resign or simply hounded out.

The attack on the judiciary is part of wider repression in the country. Purged judges were replaced with those seen as in sync with the zeitgeist (thinking or spirit of the time).

To make matters worse, judges were later given some dubious largesse by the executive, including property and gifts outside their normal remuneration packages, sparking an outcry they had been compromised.

Then there is a problem of corruption within the judiciary undermining the criminal justice system. As former High Court judge Michael Gillespie once said: “Manipulation of court rolls; selective prosecution; and packing of the bench of superior courts are outrageous techniques which provide repressive governments with an opportunity to subvert the law.”

The current constitution enshrines the rule of law. Without constitutional limits on the exercise of power and the rule of law, then you have an executive wielding wide, discretionary and arbitrary powers — in other words, a vile dictatorship.

This can drive a country back to the premises of primitive ages and barbarism. Zanu PF is systematically disintegrating the judiciary and rule of law.

By attacking judges and ignoring court orders, while crumbling the rule of law and promoting impunity, the party has left Zimbabwe on the brink of being a lawless failed state.

You cannot have a functional democracy without independent judges. Gubbay put it this way: “The bedrock of a constitutional democracy is an independent judiciary.” Editors Memo from the Zimbabwe Independent